Madras High Court
R.Chandrashekar vs R.Ragupathy on 21 September, 2021
A.S.No.216 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
A.S.No.216 of 2017
R.Chandrashekar ...Appellant
Vs
1. R.Ragupathy
2. R.Prem Kumar
3. R.Deepan Chakravarthy ...Respondents
PRAYER Appeal Suit filed under Section 96 of the Code of Civil
Procedure to set aside the decree and judgment of the Learned Principal
District Judge, Vellore in O.S.No.112 of 2013 dated 07.12.2016 and
dismiss the O.S.No.112 of 2013 on the file of the Principal District Judge,
Vellore.
For appellant : M/s.Sai Bharath Chakravarthy
For respondents : Ms.R.T.Sundari
JUDGMENT
The first defendant has approached this Court by way of this First
Appeal, challenging the judgment and decree passed by the Principal
District Judge, Vellore in O.S.No.112 of 2013. The parties are herein
referred to in the same rank as before the trial Court.
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2.Plaintiff case:-
The plaintiff had filed a suit in O.S.No.112 of 2013 for
partition and separate possession of his 1/4th share in the suit schedule
property. The property in question was a house measuring an extent of
2,295 sq. ft. comprised in S.No.120/1 in Rangapuram Village, Vellore
District. It is a case of the plaintiff that he is the father of the first
defendant through his 1st wife and the defendants 2 and 3 are sons through
2nd wife. All of them together constituted a Joint Hindu Family. The
property in question traces its origin to an ancestral property.
3.The plaintiff would submit that he is a retired defence personnel.
While in service, he had earned and saved money and wanted to construct
a house on the site in question. Infact, the land was mortgaged to the
military authorities as the plaintiff has availed a loan of Rs.5 lakhs. The
plaintiff had constructed two portions of the house one in the front and one
in the rear. The superstructure was constructed in the year 1985 at a cost
of Rs.12,00,000/-. The plaintiff has demolished the old dilapidated house
and reconstructed the terraced house in the suit property. He had
discharged the entire mortgage debt.
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A.S.No.216 of 2017
4.The plaintiff had celebrated the marriage of the first defendant in
the year 2006 and bride was non other than the plaintiff's sister's daughter.
He had given a good education to his son and his son is now working as a
Software Engineer, earning a sum of Rs.50,000/- per month. Till the
marriage of the first defendant, the relationship was smooth. However,
after the marriage, he had totally changed and developed hatred towards
the plaintiff, in which conduct, he was ably assisted by his in-laws. The
first defendant was living with his in-laws, wife and daughter in the portion
of the suit property and he never permitted the plaintiff to live in the suit
property. The plaintiff has sought the intervention of the third parties to
resolve the disputes, since the suit property was indivisible and therefore,
the same had to be sold. He had suggested that the sale price could be
divided amongst the plaintiff and the defendants equally. He had also
offered to purchase the entire house by paying the value of 3 shares to the
defendants or in the alternative, the first defendant could purchase the
entire suit property giving the market value to the other sharers. However,
there was no response to the suggestions and the plaintiff issued a
registered legal notice dated 24.08.2013. Despite receiving the said notice,
the first defendant has not come forward for the settlement. Therefore, the
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A.S.No.216 of 2017
first defendant has come forward with the present appeal.
5.The first defendant had filed a written statement inter alia
contending that the property originally belonged to his paternal grandfather
Ramasamy Naidu. He however denied that his father had spent money for
the construction and he feigned ignorance of the mortgage in favour of the
military authorities. The case of the first defendant was that the house was
constructed out of the money given by his mother Muniyammal. His
mother was worried that the father would ignore her and he shall only take
care of the second wife's children as he had been married by then. The
plaintiff and the other children had collectively taken a decision to put the
first defendant in possession of the suit property. Therefore, there has been
an oral partition and the first defendant is an occupation of the portion
allotted to him. The first defendant would state that he was always treated
badly by the father. While the defendants 3 and 4 had schooling in premier
institutions he had been sent to the local school. Likewise, the father had
no thought of his marriage till he was 33 years old. It was only when the
third defendant's marriage has been fixed, that he got the first defendant
married to his sister's daughter. It is the contention of the first defendant
that the father had not given him any education as stated by him and that
he had completed his MCA out of his own earnings. The first defendant
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A.S.No.216 of 2017
denied that he is living with his in-laws in the suit property. Further, the
plaintiff had leased out a half of the property and was earning a rental
income therefrom. He would submit that the contention of the plaintiff that
the property is not indivisible is totally false. The defendants 2 and 3 had
accepted the case of the plaintiff and sought for a partition of their 1/4th
share.
6.The learned District Judge had framed issues as to whether the
first defendant was entitled to a half share as claimed by him and whether
the plaintiff was entitled to a 1/4th share as claimed by him.
7.The plaintiff has examined himself as PW.1 and marked Exs.A1 to
A7. On the side of the defendants, the first defendant has examined
himself as DW.1, examined one Krishnaveni as DW.2 and also marked
Ex.B1.
8.The learned Judge disbelieved the contention of the first defendant
that there was an oral partition since no proof to substantiate the same had
been let in by the first defendant. Further, the first defendant had admitted
that the property which included the house was the ancestral property of
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A.S.No.216 of 2017
the plaintiff. Though the plaintiff had submitted that he had spent money
for putting up the construction he had only sought for a 1/4th share in the
suit property. Therefore, the learned Judge has decreed the suit as prayed
for.
9.Challenging the said judgment and decree, the first defendant has
filed the instant first appeal.
10.The points for consideration that arises in the above appeal is
whether the first defendant has proved his case of oral partition thereby
entitling him to a half share in the suit property.
11.The entire case of the first defendant rests on the plea that his
mother had invested money for the construction of the superstructure and
that there has been an oral partition between the parties, pursuant to
which, he has been put in possession of the property. To substantiate the
above contention, admittedly the defendant has not let in any evidence
either oral or documentary. The learned Judge has extracted the cross
examination of the first defendant as DW.1, wherein he has admitted that
the property belonged in his paternal grandfather and that his father
namely the plaintiff had been working in the military. The witness has also
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A.S.No.216 of 2017
admitted that at the time of the construction of the house he was a school
going child. His further contention that his paternal grandmother had
wanted the property to devolve on him has also not been substantiated.
Therefore, in the absence of proof to show that the first defendant's mother
had contributed money for construction of the house and that the parties
had orally partitioned the property, the case of the first defendant cannot
be accepted and the trial Court has rejected his contention. Once the
defence case is disbelieved and the case of the plaintiff that the property
being ancestral, belongs to the plaintiff stands proved, this Court holds that
the trial Court has rightly decreed the suit. This Court does not find any
reason to reverse this judgment and decree. Therefore, the First Appeal
stands dismissed. There shall be no order as to costs.
21.09.2021
vkr/gd
To
The Principal District Judge,
Vellore.
P.T.ASHA, J
vkr/gd
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A.S.No.216 of 2017
A.S.No.216 of 2017
21.09.2021
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